In a divorce proceeding based on desertion under Section 13(1)(iv) of the Hindu Marriage Act, 1955, the husband must prove both the factum of living separately and the animus deserendi (intention to desert). The wife's conduct and whether she had just cause for leaving the matrimonial home are relevant factors in determining desertion.

Sarojnei Saksena, J.

1. Disgruntled husband has preferred this Letters Patent Appeal against the judgment of the learned Single Judge, whereby wifes appeal filed against the divorce decree granted under Section 13(1)(iv) of the Hindu Marriage Act, 1955 (in short Act) was allowed.

2. Uncontroverted facts are that the marriage between the parties was solemnised on 8.3.1976. They lived together upto 15.1.1983. There is no child in this wedlock.

3. Husband filed divorce petition under Section 13 of the Act on 30.5.1986 on the ground of desertion. He pleaded that the wife is of quarrelsome nature; she indulges in quarrels on trifle matters with him as well as with his parents, fails to discharge her matrimonial as well as domestic duties. Even on festivals her behaviour is quarrelsome. Even complaints made to her parents with regard to her behaviour proved abortive. Wife threatened him that in case of any pressure, she would commit suicide. On 14.1.1983 her brother came to take her back, on that night also, she quarreled with the members of his family. On 15.1.1983 she left the matrimonial roof. Since then she has declined to come back to the matrimonial home despite his efforts made twice to bring her back. Even her parents refused to send her back. Their behaviour too was not good towards him.

4. Wife denied the allegations made in the divorce petition. She pleaded inter alia that her parents gave dowry as per their status, but the husband and his parents were not satisfied. They wanted more money. She was maltreated. Even bare necessities of life were denied to her. Once she was forced to bring Rs. 10,000/- from her parental home on the birth of her nephew. His parents further demanded Rs. 20,000/- which she brought on two different occasions under a false hope and thereby their greed will be satiated and she will be treated well in the matrimonial home, but her hopes dwindled into thin air. On 15.1.1983 she was mercilessly beaten and was turned out of the house in bare three clothes. Thereafter her father convened a Panchayat. Even in the Panchayat, husband demanded Rs. 10,000/-. She also pleaded that she is still ready and wiling to go to the matrimonial home. She denied that her husband ever came to her parental home to bring her back.

5. On these pleadings, three issues were raised. Parties adduced their evidence. On weighing the evidence, the Matrimonial Court decided issue No. 1 in petitioners favour holding that he has proved the ground of desertion and as the wife could not prove that the husband is taking advantage of his own wrong under Section 23(1)(a) of the Act, divorce decree was passed.

6. Wife challenged the decree in First Appeal. After hearing rival contentions the learned Single Judge allowed the appeal holding that the husband has failed to prove the ground of desertion.

7. During arguments, appellants learned Counsel submitted that it is a case of broken marriage. The parties were married in March, 1976. They are living separately since 15.1.1983. Despite the appellants attempts wife never came back to the matrimonial home. He also submitted that wife has taken a wrong plea of demand of dowry. Her conduct was quarrelsome and was intolerable to the husband. Despite that they lived together for seven years, but since January, 1983 wife has not returned to her husband. Hence, the learned Single Judge was wrongly held that the ground of desertion is not proved.

8. We are not impressed by the submissions advanced by the appellants learned Counsel. So far as wifes conduct is concerned, from the impugned judgment, it is evident that even father of the appellant admitted that the fault lies with his son and his wife. Thus, it is apparent that false allegations are levelled against the wife that she is of quarrelsome nature.

9. Admittedly, respondent-wife is living in her parental home since January, 1983, but the learned Single Judge has observed that husband has failed to prove that he ever tried to bring h